State Tribunals and Judicial Power By Ian Wilson LL.B

     Parliaments, both state and federal have the power to confer judicial power on various tribunals. Today the vast number of tribunals that litter the judicial landscape do much of the heavy lifting in administrative and related fields of law: immigration review matters, guardianship law, consumer dispute issues, Centrelink review matters, and much more. Often tribunals have a flexibility that courts lack, with a review of the merits of the case, hearing it from the start, rather than just reviewing an issue of law. The Administrative Appeals Tribunal is a case, in reviewing Centrelink and other administrative matters.

     State parliaments can confer, or give, judicial power to State tribunals, but such tribunals cannot exercise Federal jurisdiction, that is, decide on “Federal; matters, because that would be contrary to the Constitution. However, there are areas where matters get tricky, such as seen in the case of Burns v Corbet; Gaynor v Burns [2017] NSWCA 3 (3 February 2017), where there is a dispute between residencts of two states, arising under state law determined by a State tribunal, the tribunal exercising judicial power, but  not being a Chapter III Court, as defined by the constitution. Is there an implied limitation on the legislative power of the State relative to sections 75 and 76 of the Constitution on such tribunals which are not Chapter III Courts? Is a State law which confers judicial power on such tribunals inconsistent with section 39 of the Judiciary Act 1903?

     It was held by the NSWCA that since Federation some State tribunals have exercised their pre-existing jurisdiction about matters within the scope of sections 75 and 76 of the constitution. However, if a State did attempt to confer judicial power to a tribunal in a matter within the scope of section 39 of the Judiciary Act, this would be inconsistent according to section 109 of the Constitution. Hence, State tribunals do not have judicial authority to decide cases involving disputes between residents of different states.

     I have simplified all of this to get to the conclusion. Clearly, this is a lower court decision, and we await a resolution of the issue by the High Court of Australia, which will take, probably forever. Nevertheless, it is worth keeping the result in mind in any legal matter with a dispute with an interstate party.



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Friday, 12 July 2024

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